1. 1st? Was Defendant driving?
Usually only a ? in wreck cases.
A. State needs to present the person who saw defendant drive, Melendez-Diaz/Crawford (confrontation issues).
B. Or defendant's admission and corroboration of defendant's driving
Corpus Delecti rule- State v. Trexler, ..... and must show defendant impaired at a relevant time after driving, by alcohol consumed before or during driving.
2. If Defendant was stopped, was there a reasonable and articulable suspicion (Terry v. Ohio) that a crime was or was about to occur?
A. Objective Standard (Wrenn)
B. If a crime was committed, then there is R.S.
C. If not, look to the totality of the circumstances
D. ?: Would a reasonably cautious officer given all the information available at the time of the stop, believe that a crime was or was about to occur?
3. Probable cause to arrest: Standard:
A. Also from Terry v. Ohio. See above.
B. Preponderance of the evidence-more likely than not given all the information known to the officer at the time, ie., was it more likely than not that a crime was occurring?
C. Parts of the evidence include:
1. The driving (if any)
2. The defendant's behavior/appearance
3. The defendant's admissions/statements
4. Witnesses statements (if any), and
D. Field Sobriety Tests:
1. Walk and Turn-Stand heel to toe hands at sides, 9 steps heel to toe step around turn. 9 steps back. Clues to Look For:
a. Can't balance during instructions.
b. Starts too soon.
c. Pauses to regain balance or stop (only clue if told NOT to stop or pause!)
d. Misses heel to toe (need gap of ½" or more)
e. Steps off line. (Step off line in my imagination, or in yours?)
f. Uses arms to balance (more than 6" from sides) (Only clue if told NOT to!)
g. Takes wrong number of steps-counting incorrectly is NOT a clue!
h. Improper turn. (Loses balance during turn, or turns in a way other than instructed.) (Pivot not acceptable)
2. OLS: Stand hands at sides, lift one leg 6" or more and count to 30. Count 1001 to 1030, and estimate 30 seconds. If put foot down pick up and start again. Four Clues to Look For:
a. Swaying-distinct side to side or front to back motion of the raised foot or body- tremors in foot are not a clue.
b. Uses arms to balance (more than 6" from sides).
c. Hopping
d. Foot down before 30 seconds.
Two out of four = 65% likely .10 or more-not a measure of impairment!)
Need two out of eight implies .10 or more. (NOT A TEST OF IMPAIRMENT) test is 68% reliable.
Marcus Hill says: 153 tasks, 2 mistakes=fail with 98% correct!
3. HGN- Hold head still and follow my pen. (Pen slightly above eye level.) Officer is looking for a jerking of the eyes (nystagmus). There are ten steps to administer HGN-but looking for: a. Three clues per eye:
b. Onset prior to 45 degrees. (How is 45 degrees measured?)
c. Distinct and sustained nystagmus at max deviation.
d. Lack of smooth pursuit.
Need four out of six clues to get 77% likely .10 or more.
Marcus Hill says: Lots of dispute here- opthamologists think test not accurate for testing .10 or more NO EVIDENCE OF IMPAIRMENT. Only evidence of .10 or more.
So: useful in refusal/no test cases?
Lots of organic/non-alcohol or drug causes of nystagmus-
Most common:
A. Concussion (ever- but more problems if recent)
B. Flashing lights in defendant's line of sight: remember lights reflect on all surfaces.
FSTs: Cross examination of Officer:
A. What baseline did you use for the defendant's grade?
B. Did you consider his fitness, his age, his weight, the environmental conditions (right beside the road, wind from cars, not level, not well lit, gravel, etc., footwear........?
C. How well did you do the very first time you shot a basketball?
A. Better with practice?
B. Did you allow defendant to practice?
D. A 60 year old sedentary fat man is not as balanced and coordinated as a 19 year old college gymnast-Why don't we grade these on a curve?
PBT-Issues-
A. Calibrated recently?
B. Follow instructions in owners manual?
(Or on PBT) = Change tube between tests.
C. Defendant told he does not have to take, or is it required (in mind of reasonable Defendant.)
D. Check temperature (on PBT)
But see: State v. Rogers held
One PBT (owner manual says 2)
And other information can equal PC- enough other info?
But: Only thing officer can say is positive for alcohol (that means some present!)
(See State v. Williams, COA09-493, unpublished.)
Look for a video-don't just rely on officer's story
Question at the end-Would a reasonable officer given all the facts he knows conclude that the defendant was committing the crime of DWI? If so, arrest if not, no PC.
After arrest-MIRANDA
A. Or no statements (in response to questions) admissible-but Defendant's unprompted ramblings are admissible even without Miranda and defendant must invoke right to silence. (Must speak to have right to remain silent!)
Next Question-Breath Rights
A. Read and shown to Defendant?
B. Did Defendant attempt to call attorney (for advice) or witness?
C. Was Defendant allowed a phone (and cell phone to look up numbers)?
D. Most people keep their phone numbers in their cell today.
E. Deprive them of this and you deprive them of the right to a phone call.
Also: Does the phone work?
A. Call Long distance/cell phones (some jail phones will not)
B. Right to a witness includes right to a working phone and right to consult with attorney.
Allowed to talk to witness/ attorney
A. Did witness arrive in time? (before test was over-no rule about partial views)
B. Did officer check to see if witness there?
Refusal: Statute does not require willful, but what is refusal if not intentional?
A. Can be- fail to follow instructions
B. Sometimes-just unable to provide sample..
Why not, if defendant having problems, just get a blood test?
No longer a real right to refuse in North Carolina-Cops routinely taking defendants for forced blood draw after refusal.
Question: Did the officer give the defendant a reasonable opportunity to provide a sample?
Intoximeter Test
C. What is the tolerance? Plus or minus what (State says no tolerance-the only machine ever without possible error!)
D. We only see .08., could be .080 or .089
E. Truncates, doesn't round
F. But an .08 cal check can read .07, so + or minus .01? (.070 to .089 is ok)
G. We could know more if it would show us 3 digits.
The jury is free to disregard BAC- State v. Narron says its not a irrebutable presumption.
Defendant's behavior support BAC? Jury to decide.
Knoll Issues
A. Was defendant allowed to gather evidence on his own behalf when that evidence was available (in DWIs the evidence evaporates quickly).
B. FSTs.
1. Was there a witness who was prevented from watching FST's?
2. Lots of cops with guns, no danger from witnesses.
3. Why can't they watch? Critical time here.
At the Magistrate Office-even if intox done, was defendant allowed access to witnesses ASAP?
A. Was defendant held on secured bond-WHY? (must be supported by reasons).
B. Cash does not prevent defendant from hurting himself or others.
C. Custody release handles that. What evidence supports magistrate's decision to hold- just impaired is not enough.
D. Defendant's right to gather evidence PARAMOUNT
Melendez-Diaz and Crawford
Defendant has the right to confront all witnesses.
A. If the State wants to get evidence in, it must use a witness.
B. Roadblock-who tells us what the plan was (who wrote it)?
C. Blood Test-need chemical analyst, nurse, SBT Lab Analyst who tested the sample.
D. State v. Smith overruled-adopted Harry Martin's dissent.
Beyond a Reasonable Doubt-
If you can imagine any other way this could have happened except defendant was appreciably impaired, them must be NG.
Sleepy looks a lot like drunk-
A. FSTs argue reasonable coordination-what about clumsy people?
B. Everyone is nervous when he or she gets stopped.
C. Eyes red and glassy-been in a bar- 3:00 a.m.-Contacts? Smoky?
D. Speech Slurred-ever talked to defendant before?
E. White Coat = High Blood Pressure. Blue lights= jitters.
Remember:
The defendant gets the benefit of the doubt-every thing the cop says is not gospel-he or she does have a dog in this fight.
Motions Pretrial (not required to be in writing, or in advance, per Statute)
RS
PC
Suppress intox result, blood test, etc.
Defendant can move to VD at end of State's case-and move to suppress anything that was not discovered prior to trial.
Brady-No discovery in DWI
BUT:
A. Probably in State's interest to provide so that motions can be done pretrial.
B. But State ALWAYS responsible for providing all possibly exculpatory information prior to trial.
What if cop says something not disclosed prior to trial that is possibly exculpatory- "I did a PBT that was showing no positive result, so I got another machine and got a positive result." I knew the defendant was uncoordinated before, so I know he couldn't do those tests." "I told the judge there was no p.c. to charge Defendant."
Admission of documents into evidence at trial:
1. Police reports
2. Accident reports - hearsay?
3. Blood tests (but see Melendez-Diaz section above)
4. Medical records
5. Learned treatises
6. BAC report of .15 or over, must be proven to the jury beyond a reasonable doubt (as are all factors after Apprendi.)